Экзамен зачет учебный год 2023 / European Condominium Law
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(g)the provision that the use of non-adjoining parts annexed to a private unit or apartment (such as store-rooms or parking bays) may be transferred to persons other than the owner of a unit (or persons who reside with him or her), and even to a non-member of the condominium, unless this is expressly forbidden in the by-laws; and
(h)the provision that the constitutive title, with its erga omnes efficacy when registered in the Land Register, has a compulsory and an optional content; the former consists of the condominium plan, which contains a description of the building, the common and private elements and the share values allocated to each unit (art. 553-9 CCC), while the latter includes the by-laws or the rules, and the rights reserved by the developer such as the right to add another floor or floors to the top of the existing building (including the construction plan) or the right to create sub-condominiums.
In addition, the Catalan legislation, in contrast to the Spanish legislation, contains precise provisions as to additions to the by-laws. Examples are the possibility to exempt an owner of a unit from paying a particular common charge (e.g. ground level units may be exempted from the expense of maintaining the elevator); the grant of the right of exclusive use of a particular portion of the common elements (e.g. a common balcony) to one or more than one owner; the manner in which signs and name-plates may be attached to commercial units in condominium schemes; and the limitation of certain activities in private units or apartments.
Another important change compared to the Spanish legislation is the possibility of an owner changing the intended use of a particular unit without the consent of the governing body, on condition that the
change is not forbidden in the by-laws and the structural components of the condominium are not affected.7 If structural elements are
altered, the agreement of 80 per cent of the owners in number and share value is needed (CC arts. 553-25.3 and 553-36.2). This means, for example, that a primarily residential unit can be used by its owner to conduct his or her medical practice, and be altered on the inside for
7Note that the new Italian CC (art. 1117-ter) requires by contrast an 80 per cent majority (in number and value) at a general meeting to change the intended use of the common parts. The notice informing residents of the meeting must clearly indicate the common parts affected as well as detailing the proposed change in use. The resolution itself must detail how the intended change is to be implemented. Alterations may not be implemented where they may cause harm to the stability or safety of the building, or alter its architectural structure.
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this purpose, as long as this is not forbidden in the by-laws (CC article 553-10.2 (c)). The Spanish legislation is unclear on this point, although the Spanish Supreme Court has accepted that the use of a unit may be changed if it is not expressly forbidden in the constitutive title.8
3. Italian innovations
3.1. Alterations of the common property: video-surveillance, green promotion and facilitation of flow of information
The Italian innovations first aim at adapting communal living to modern social and technological changes. To achieve this aim the majority requirement for certain alterations to the common property is reduced to a simple majority in number and share value. Improvements covered are alterations aimed at improving the health and safety standards of the condominium, such as the installation of video surveillance systems (art. 1122ter); environmentally friendly alterations to control energy consumption and to promote renewable energy production;9 and alterations that facilitate telecommunications (art.1120 par. 2 nos. 1–3).10 The manager must convene a general meeting within thirty days of receiving a request to do so, even if the request is made by a single owner. The general meeting must approve the design and manner of installation of the specific system (art. 1120 par. 3).
3.2. Individual satellite dishes and solar panels
As an exception to the principle that owners cannot avoid their liability to contribute to the maintenance expenses of the common property, the amended Italian CC now allows owners to give up the use of centralised heating or air conditioning. This is subject to the proviso that such a renunciation must not cause significant imbalances in the operation of the central heating installation or a disproportionate
8STS 5-3-1998, RJ 1998\1577 and RRDGRN of 23-3-1998 and 25-9-1991).
9These alterations may be carried out by the condominium or any resident who has a real or personal right over a solarium or any other suitable flat surface on the common property. If undertaken by a resident, the general meeting must approve the design and manner of installation of the system. See further Law no. 10 of 9 January 1991 on Implementation of the National Energy Plan art. 26 pars. 2 and 5.
10This includes the installation of centralised systems for radio and TV reception and access to any other kind of information flow. See also Decree Law no. 5 of 23 January 2001 art. 2-bis no. 13.
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increase in the cost to other residents. Furthermore, even an owner who has renounced his rights to the benefit of the heating or air conditioning remains obliged to contribute to the cost of any extraordinary maintenance, preservation or renewal of the system concerned (art. 1118).
This notion is extended by art. 1122 bis par. 1, which allows an owner to install his own non-centralised system of radio or television reception as well as access to any other form of satellite or cable telecommunications. This must be done in a manner which causes the least damage to the common areas and to individual units while preserving the architectural appearance of the building and maintaining the requirements pertaining to public networks.
Article 1122-bis par. 2 allows an owner to install solar panels or similar devices for the production of renewable energy to service individual units. Such installations may be attached to the rooftop of the building or to any other suitable flat surface on the common property or the individual unit in question. The owner concerned must inform the manager of the specific content of the alteration and the manner in which it is to be carried out. If opposed to the proposed manner of the works, the general meeting may prescribe, with a twothirds majority in value, adequate alternative means of carrying out the alterations or impose precautionary measures to safeguard the stability, security or architectural appearance of the building. It may also make the execution conditional on the person concerned providing a suitable guarantee for eventual damage suffered.11
3.3. Professional manager
The Italian CC (art. 1129 par 1) stipulates that the manager must be appointed by the general meeting. If an appointment cannot be agreed, one or more of the owners or the previous manager may approach the court to make the appointment. The appointment lasts for one year and can be extended for another year. The meeting that deals with the dismissal or resignation of a manager must appoint a new manager (art. 1129 par. 10).
The Italian CC provides that the general meeting may resolve at any time to dismiss the manager in the manner prescribed in the by-laws. The court can also order his dismissal in cases where he fails to comply
11 See further implementing provision art. 155-bis.
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with his obligations,12 fails to render a management report (account) or is guilty of serious misconduct.13 In cases of serious tax irregularities or neglect of opening and operating an account in the name of the condominium,14 any owner may request a general meeting to stop the violation and revoke the mandate of the manager. If the general meeting fails to dismiss the manager, any owner may approach the court and if the application is accepted, the applicant has a claim for legal expenses against the condominium. The condominium (owner’s association) in turn can recover from the manager (art. 1129 par. 11). A manager who was dismissed by the court may not be reappointed (art. 1129 par. 13).
The amended implementing provisions of the Italian CC (art. 71-bis) contain a list of necessary qualifications for the appointment to the office of manager. Educational qualifications include graduation from a secondary school of the second grade and attendance at an initial training course as well as periodic training in the field of condominium administration (nos. f) and g)). Of course, the academic qualities of a manager are not as important as his integrity and reputation. A manager may only be appointed if he has not been convicted of certain crimes, not subjected to preventative measures,15 has not been interdicted or incapacitated and does not have a bad credit history (nos. b) –e)).16 Management firms registered in terms of the Civil Code can also be appointed as managers. In such a case the requirements must be met by the partners with unlimited liability; directors and employees who oversee administration of condominiums (par. 2). Failure to meet the ‘integrity requirements’ above will automatically lead to dismissal. In such a case, any owner may convene a meeting to deal with the replacement of the manager.
The reformed Italian Civil Code contains several provisions aimed at improving transparency within condominium management regimes.
12In the case mentioned in art. 1131 par. 4.
13Art. 1129 par. 12 contains a list of instances of serious irregularities, among others, failure to convene a meeting for the approval of the financial statements of the condominium; failure to open and operate the special account of the condominium and non-diligence in the collection of contributions.
14Non-compliance with art. 1129 par. 12 no. 3).
15This could be for criminal trafficking, living off the proceeds of crime and involvement in offences endangering the physical or moral development of minors, the company, security or public peace.
16Art. 71-bis b)-e). The latter stipulates that he must not be recorded on the list relating to the non-payment of checks, bills or promissory notes.
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The manager is obliged to inform owners of his personal details and the premises where the compulsory condominium registers are kept. He must also make the registers available for inspection on specified days at specified times, and owners are entitled to signed copies for a small charge (art. 1129 par. 2). The first condominium register contains the personal details of the individual owners and holders of real and personal rights of enjoyment, including the tax code, place of residence and cadastral data of each individual unit, as well as data relating to safety conditions.17 The second register, which may be kept electronically rather than physically, contains the minutes of general meetings,18 a list of previous managers in chronological order and the accounting ledger, which must chronologically record the income and expenditure of the condominium within thirty days of the event (art. 1130 no. 7). The address and telephone number of the manager must be affixed in a place accessible to unit owners or of frequent common use (art. 1129 par. 5). Every owner is allowed to inspect and obtain copies of periodic statements of the special condominium account controlled by the manager (art. 1129 par. 7). The records and supporting documents must be kept for ten years from the date of registration of the condominium (art. 130-bis par. 1).
In addition, the manager must prepare an annual condominium management statement and convene a meeting for its approval within 180 days of his/her appointment (art. 1130 no. 10). Article 130-bis stipulates that the condominium statement must consist of an accounting ledger,19 a balance sheet of the assets and liabilities and a concise explanatory note describing the annual management fee as well as current transactions and outstanding financial liabilities. This condominium statement must be brought to the attention of the owners by means of copies atached to the notification of the annual general meeting. Furthermore, a majority of owners in number and value can request at the general meeting that the manager creates an internet website for the condominium. This would allow persons entitled
17The manager can extract the necessary information from owners to keep the register up to date (art. 1130 no. 6).
18The minutes must report the constitution of the meeting, its resolutions and short statements supporting the resolutions as well as the by-laws adopted at the meeting. Art. 1136 par. 7 stipulates that the minutes of the general meeting must be drawn up for transcription in the register held by the manager.
19It notes all the income and expenditure of the condominium in chronological order.
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thereto to inspect and obtain digital copies of a whole range of management documents (implementing provision art. 71-ter).
The amended Italian CC obliges the manager to take out a professional liability insurance policy to cover the risk of damage incurred in the performance of his task (art. 1129 par. 3).20 The manager must adjust the level of cover to match the expenditure approved by the general meeting for extraordinary works. If covered by a general professional liability insurance policy for the entire business carried on by the manager, such a policy must be adapted to the needs of the condominium concerned (art. 1129 par. 4).
On termination of office, the amended Italian CC obliges the manager to deliver all the documentation in his possession relating to the condominium and individual owners. Furthermore, without the right to further compensation, the manager must perform any urgent measures necessary to avoid prejudice to the interests of the community (art 1129 par 8). The manager must retain all documentation relating to his own management including his relationship with the owners and the physical condition of the building (art. 1130 no. 8).
3.4. Auditor and condominium board
The revised Italian CC makes the appointment of an auditor compulsory (art. 1130-bis par. 1). His task is to check the regularity of the bookkeeping by examining bank statements and supporting documents for the current year. There is no limit to the length of the term under which an auditor is appointed. The CC also provides for the appointment of a condominium board consisting of at least three owners of units within buildings consisting of at least twelve units (art. 1130bis par 2). Its function is to advise on financial matters and to control the management of the condominium.
3.5. General meetings
The new implementing provisions of the Italian CC (art. 66) stipulate that the place, time and agenda of a general meeting must be communicated at least five days before the appointed date by registered or electronic mail, facsimile or hand delivery. A failure to comply with these provisions will allow dissenting or absent owners to seek annulment of any resolutions passed. In order to ensure regular meetings at
20 See also the revised Belgian CC art. 577-8 § 4 no. 10.
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short intervals, the manager is now allowed to fix a number of consecutive meetings in a single notification showing the additional dates and hours of a possible continuation of general meetings.
In terms of the Italian reform legislation, a general meeting on first call is validly constituted when the majority (no longer two-thirds) of the owners in number representing two-thirds of the share values of the entire building in value are present at the meeting (art. 1136 par.1). An adjourned meeting must be convened within ten days of the first meeting, and is validly constituted by the presence of one-third of the owners in number, representing at least a third of the share values in the building.
The revised implementing provisions of the Italian CC stipulate that proxies must be presented in writing and that in the event that a condominium consists of more than twenty units, one proxy may not represent more than a fifth of the owners in number and share value (art. 67 par. 1). The manager is not allowed to participate in any general meeting (par. 5). These provisions further allow usufructuaries to vote on matters that pertain to the ordinary administration and enjoyment of the common property and facilities. The bare owner votes on other resolutions except where the usufructuary intends to pay for repairs refused by the bare owner or if there is a vote on improvements or additions to the common parts.21 Both the usufructuary and the bare owner must be notified of general meetings and they are jointly and severally liable for contributions owed to the condominium (art. 67 pars. 6–8).
Under the revised Italian CC, the majority requirement for ordinary resolutions is a simple majority of owners in number, representing at least 50 per cent of the share values of the building (art. 1136 par. 2). The Italian CC now states expressly that the following resolutions may be adopted by such a reduced majority: resolutions concerning the appointment and dismissal of the manager; active and passive lawsuits concerning whether the manager has acted ultra vires; the reconstruction of the building or significant repairs; measures to stop violation of the destined use of the common property; and participation in renewal projects. Also included are the various resolutions discussed in this part concerning energy consumption and the cogeneration of energy sources, the promotion of telecommunications and the installation of
21 Arts. 1006 and 985 and 986 respectively.
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video surveillance on the common property (art. 1136 par. 4). Under the revised Italian CC, not only dissenting owners but also absentees and abstainees may apply to the court for invalidation of resolutions contrary to law or the by-laws within a period of thirty days (art. 1137 par. 2).
3.6. Condominium by-laws
The revised Italian CC has introduced a rule against blanket prohibitions on the keeping of domestic animals (art. 1138 par. 5). This is based on a recent decision of the Italian Supreme Court that every person has the constitutional right to own a pet. The revised implementing provision also cracked down on anti-social behaviour by increasing the penalty for the contravention of by-laws to 200 Euro and in the case of a relapse to 800 Euro (art. 70).
3.7. Collection of arrears
The revised implementing provisions of the Italian CC allow the manager to obtain an immediately enforceable court injunction against an owner who defaults on the payment of his contributions.22 This can be obtained without prior authorisation from the general meeting. If payment is not received within 10 days of the injunction being granted, the unit can be attached and sold in execution. In addition the manager can suspend the defaulting owner from using certain common services if the owner has been in arrears for a period of six months (art. 63).
4. Belgian innovations
Apart from the introduction of a two-tiered management structure for larger condominiums and the requirement for full disclosure on transfer of a unit, the Belgian innovations focus on the attainment of good internal corporate governance in condominium schemes.
4.1. Professional manager
Apart from being appointed by the general meeting, the revised Belgian CC allows for his or her appointment by judicial order at the
22The details of the defaulting owner must be given on request to the other creditors who are not satisfied yet who are not allowed to proceed against the defaulting owner before they had proceeded against all the defaulting owners in the scheme.
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request of any owner or third party with an interest in the scheme (art. 577–8 § 1 pars. 1 and 2).23 The by-laws of the condominium must indicate the manner in which a manager is appointed, the scope of his functions, the specific grounds for dismissal and the obligations which arise on termination of his appointment (art. 577–4 § 1 par. 4 no.4). The appointment of the manager may not last longer than three years but may be extended by an express resolution of the general meeting. The fact that the appointment is not renewed does not in
itself entitle the outgoing manager to compensation (art 577–8 § 1 par. 4).24
In order to improve transparency in condominium governance, the new Belgian law obliges the manager to permanently affix a clearly visible excerpt of the agreement of appointment to the entrance of the building within eight days from his or her appointment. The excerpt must also contain the surname, first names, profession and address of the manager and, if the association is a company, its legal form, designation, registered office and registered number at the Crossroad Bank for Enterprises. The excerpt must provide information which facilitates immediate contact with the manager, and this specifically includes the place where the by-laws and the minutes of the reso-
lutions of the general meeting can be inspected (art 577–8 § 2 pars. 1 and 2).25
In order to avoid a conflict of interests, the new Belgian Law requires the manager to obtain the prior consent of the general meeting for all agreements between the association and the manager, his employees, his relatives and their spouses. This also applies to agreements with associations and enterprises of whom the aforementioned persons are the owners, have a share in the capital, hold directorships or supervising positions, earn salaries as employees or are paid as independent contractors. If the manager is a juristic person, he may not conclude any contract on behalf of the owners’ association with an enterprise in which he owns a direct or indirect share without being specially authorised by a decision of the general meeting (art. 577–8 § 4 no. 15).
For the sake of good governance, the new Belgian Law obliges the manager to control the assets of the owners’ association by opening
23This means that contractors with claims against the condominium or neighbours who can start proceedings for damages caused by the building can now also ask the court to
appoint a manager to represent the condominium. |
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24 Timmermans, ‘Verniewde Apartementswet’, nos. 99–101. |
25 No. 102. |
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diverse accounts in the name of the association for all its assets and specifically to open separate accounts for its working and reserve capital (art 577–8 § 4 no. 5).26 The book-keeping of the association must be conducted in a clear, accurate and detailed manner according to a minimum normalised account system prescribed by the King. Smaller condominiums with fewer than twenty units may operate a simplified book-keeping system that reflects income and expenses, cash flow and the available working and reserve capital (art 577–8 § 4 no. 17).27
The new Belgian Law requires the manager to give easy access to all public documents and information concerning the common property in the manner determined by the by-laws and the general meeting, and especially by way of a website (art. 577–8 § 4 no. 11). The website must provide every owner with secured entry to the databases of the manager so that they can view the administrative and financial records of the association. The manager must also preserve the post-intervention file of a building, which contains all the documents that can be used for subsequent maintenance, renovation or extension of the building (art. 577–8 § 4 no. 12).28 In order to quantify outsourcing costs, the manager is required to submit a number of cost estimates on the basis of a previously prepared survey (art. 577–8 § 4 no. 13).
On termination of office, Belgian law requires the manager to hand over a detailed dossier of his control of the condominium to his successor in title or to the chairperson of the last general meeting. This includes full details of the accounts that he controls (art. 577–8 § 4 no. 9).29
4.2. Auditor and condominium board
Similar to the revised Italian CC, the amended Belgian CC makes the appointment of an auditor and a condominium board30 compulsory for larger condominiums consisting of more than twenty units and
26‘Working’ capital is defined in art. 577–11 § 5 par. 3 as payments made for periodic expenses such as the cost of heating and electricity, general administration and the salary of a caretaker. ‘Reserve capital’ is the total of the amounts paid periodically to recover non-periodic expenses such as the expenses for the repair or renewal of the lift or the provision of a new roof cover.
27Timmermans, ‘Verniewde Apartementswet’ no.116 states that the legislator rejected the traditional non-professional bookkeeping by depositing crumpled documents in a cake box.
28Timmermans, ‘Verniewde Apartementswet’ nos. 109–11.
29Timmermans, ‘Verniewde Apartementswet’, nos. 103–8.
30The manager and holders of real or personal rights may not be members.